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In re Addalyne S.

Court of Appeals of Tennessee, Nashville

April 26, 2018


          Session March 14, 2018

          Appeal from the Chancery Court for Coffee County No. 2015-CV-333 L. Craig Johnson, Judge

         In this parental termination case, maternal Grandparents sought termination of both Mother's and Father's rights on the grounds of: (1) abandonment by willful failure to support and (2) abandonment by willful failure to visit. The trial court found no grounds for termination as to Mother and only one ground-failure to support-as to Father. The trial court however found that it was not in the child's best interest to terminate Father's rights. We affirm the trial court's judgment in all respects.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

          Christopher R. Stanford, Manchester, Tennessee, for the appellants, Anthony O. and Bethany O.

          Stacy L. Lynch, Tullahoma, Tennessee, for the appellee, Katheryn O.

          Thompson G. Kirkpatrick, Manchester, Tennessee, for the appellee, John S.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Frank G. Clement, P.J., M.S., and W. Neal McBrayer, J., joined.




         Addalyne S. ("Addy" or "the child") was born in February 2013 to unmarried parents John S. ("Father") and Kathryn O. ("Mother") (together with Father, "Parents").[1] Mother and Father engaged in a long-term, tumultuous relationship that included abundant drug abuse and criminal charges for both. After Addy was born, she and Mother resided with Mother's parents, Anthony and Bethany O. ("Grandparents"), for a short time because Mother needed assistance with Addy's care. Shortly thereafter, Mother moved out of Grandparents' home, leaving Addy to be cared for by Grandparents. Addy continues to reside with Grandparents, who support Addy financially and provide her with a stable and loving home.

         Grandparents filed a dependency and neglect petition on March 21, 2014, in the Coffee County Juvenile Court ("juvenile court"). The petition detailed Father's multiple failures in providing for and raising Addy and Mother's agreement that Grandparents should be temporary legal guardians of Addy due to both Mother's and Father's inability to provide for Addy's needs. The parties participated in mediation, and on November 13, 2014, Grandparents obtained temporary custody of Addy through an agreed order. The order granted Grandparents legal and physical custody of Addy and outlined different steps Mother and Father must complete to regain custody of the child. These steps included hair follicle drug screening, urine drug screens, and rehabilitation meetings. Upon completion of each step, Mother and Father could increase their visitation time with Addy, with the opportunity to eventually regain full custody.

         Mother and Father continued to exercise their visitation with Addy after the agreed order was entered. Visitation was, however, essentially the extent of their compliance with the order. Mother and Father both took only one hair follicle drug screen as the court ordered, and both parents failed their hair follicle test by testing positive for an assortment of different substances. After failing their respective drug tests, Parents did not take any urine tests or attend rehabilitation meetings pursuant to the agreed order. Parents took additional drug tests after the petition for termination was filed, which is discussed in more detail, infra. Mother and Father have both struggled with drug addiction throughout Addy's life. Eventually, their drug abuse resulted in criminal charges. Father has been convicted of drug possession and driving under the influence. Mother has also been convicted of driving under the influence. Mother and Father were also arrested together in 2015 for drug possession and possession of drug paraphernalia.

         In January 2015, Grandfather initiated a child support action through the State of Tennessee seeking support from Mother. On February 4, 2015, however, Grandfather voluntarily dismissed the pending child support action due to Mother's medical issues, which prevented her from working.[2] The order stated that the matter was "dismissed due to [Grandfather] no longer wanting to pursue child support from [Mother]." On April 22, 2015, Grandparents initiated a second child support case using a private attorney. Grandparents' attorney personally served both Mother and Father with summonses to the juvenile court while Mother and Father were at the Coffee County Justice Center facing criminal charges.[3] The summonses specified that the hearing regarding child support would occur on June 1, 2015.

         Neither Mother nor Father appeared for the child support hearing. The juvenile court entered a default judgment against Mother and Father on June 17, 2015, ordering each parent to pay $308.00 in support per month. The June 17 judgement was mailed to Mother and Father at Mother's paternal grandmother's home. It is disputed as to whether Grandparents believed this was where Mother was actually residing. Mother claims that she did not receive the default order at that time, and was unaware of the order requiring her to pay the monthly child support until after the termination petition was filed. Father also claims he was unaware of the order. Both parents later testified, however, that they were aware of their duty to financially support Addy. Father paid $20.00 per week of support in July 2015, totaling $80.00. Mother paid no support prior to the filing of the termination petition, but provided Addy with doughnuts, an outfit, and tomatoes. Mother paid a total of $95.00 in support after the petition was filed.

         Despite Parents' ongoing drug abuse problems to this point, both were able to secure employment prior to the filing of the termination petition. Father worked in construction, and testified that he made approximately $100.00 per day. Mother was unable to work from late 2014 into early 2015 due to major surgeries. Mother resumed work in October 2015 at Aspen Technologies Inc. ("Aspen Technologies"), a factory located in Manchester, Tennessee. Mother, however, only worked at Aspen

         Technologies for approximately three weeks, ending her employment in early November 2015. According to Mother, her issues with maintaining employment related to her inability to secure reliable transportation.

         On December 11, 2015, Grandparents filed a petition to terminate both Mother's and Father's parental rights in the Coffee County Chancery Court ("trial court"). Grandparents relied on three separate grounds in their petition: (1) abandonment by willful failure to support, (2) abandonment by willful failure to visit, and (3) persistence of conditions.[4] A trial was conducted on March 21, March 24, and March 30, 2017.

         At trial, Mother testified candidly about her struggle with drug addiction. She also testified that she had not used any drugs for almost one year, and passed multiple drug tests. Mother also stated that she had a steady job at Speedway Market in Tullahoma, Tennessee, and was expecting a promotion. Mother testified that, at the time of trial, she had a stable home and had been living with her boyfriend since the summer of 2016. She also stated that she has consistently visited Addy, who calls her "Mommy, " once a week.

         Regarding Mother's visitation with Addy, Grandparents testified that Mother visited only a minimal amount of times from August to December 2015, including missing over fifteen visits from November 2015 to February 2016. Grandparents introduced Grandmother's written log of Mother's visits into the record, which detailed each of Mother's visits. These logs detailed only six visits in the period relevant to this appeal, as discussed, infra.[5] Grandparents also stated that during Mother's visits with Addy she was often disengaged, smoking, playing on her phone, or under the influence of illegal drugs. Grandparents noted that Mother usually did not stay the full six hours allotted to her for her visits. Mother, however, testified that she visited Addy more than the dates logged by Grandmother and that she was engaged during the visitation. Mother testified that her failure to attend every visitation with Addy resulted from a combination of unreliable transportation and disagreements with Grandparents. Mother described her visits with Addy as "great" and that the two enjoyed doing activities, such as going swimming and doing hair and make-up together.

         Father also testified at trial. He, too, was candid about his drug abuse problems. Father explained that he was incarcerated from September 29, 2015, to December 1, 2015, apparently as the result of a probation violation stemming from previous drug convictions. Father stated that he has not had any more arrests or drug charges since the beginning of 2016. From Father's testimony, it appears that he has taken three drug screens since the petition was filed, one on August 19, 2016, which tested positive for THC (marijuana) only; one in December 2016, which tested positive for methamphetamine, amphetamine, and marijuana; and the third on the day of the trial, when he tested negative for all substances. Following his December 2016 drug test, Father testified that he participated in and completed a three-week rehabilitation program at Mirror Lake Recovery Center in early 2017.

         Like Mother, Father stated that he also was living with his significant other and her six year old son in a stable, drug-free household. There was also no dispute that Father held a stable job. Furthermore, Father stated that he has not missed one visitation with Addy in 2016. He also testified that Addy has a strong bond with Father's niece, Bella, along with Father's mother and sisters. Father's visitations also generally take place on his mother's twenty-five acre farm, where Addy has a horse named August with whom she also has a strong bond. Father testified that Addy is comfortable with him during their visitations and she also calls him "Daddy" when they are together.

         On April 25, 2017, the trial court issued its findings of facts and conclusions of law, finding that Grandparents failed to present clear and convincing evidence as to any ground to terminate Mother's parental rights. The trial court found that Grandparents did establish by clear and convincing evidence that Father willfully failed to support his child. The trial court further concluded that it was not in Addy's best interest to terminate Father's rights, in large part due to the guardian ad litem's recommendation against termination of Father's parental rights if Mother's rights were not terminated. The trial court entered its final order denying termination and remanded the matter to juvenile court for any further custody issues on May 9, 2017. From this order, Grandparents timely appealed on May 10, 2017.


         Grandparents present four issues on appeal, which we have taken from their appellate brief, as follows:

1. Whether the trial court erred in finding that the Mother did not willfully fail to pay child support during the relevant four-month period,
2. Whether the trial court erred in finding that the Mother did not willfully fail to visit the child during the relevant four-month period.
3. Whether the trial court erred in finding the child's best interest were not served by terminating the Mother's parental rights.
4. Whether the trial court erred in finding the child's best interest were not served by terminating the Father's parental rights.

         Father presents an additional issue, which we have taken, and slightly restated, from his brief: Whether the trial court erred in determining that the Grandparents proved by clear and convincing evidence that Father willfully failed to pay support during the relevant four-month period.

         Standard of Review

         The Tennessee Supreme Court has explained that:

A parent's right to the care and custody of her child is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993). But parental rights, although fundamental and constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at 250. "'[T]he [S]tate as parens patriae has a special duty to protect minors. . . .' Tennessee law, thus, upholds the [S]tate's authority as parens patriae when interference with parenting is necessary to prevent serious harm to a child." Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.

In re Carrington H, 483 S.W.3d 507, 522-23 (Tenn. 2016) (footnote omitted). In Tennessee, termination of parental rights is governed by statute which identifies "'situations in which that state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought.'" In re Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618 at *7 (Tenn. Ct. App. Apr. 29. 2005) (citing Tenn. Code Ann. § 36-1-113(g)). Thus, a party seeking to terminate a parent's rights must prove (1) existence of one of the statutory grounds and (2) that termination is in the child's best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

         Considering the fundamental nature of a parent's rights, and the serious consequences that stem from termination of those rights, a higher standard of proof is required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party must prove statutory grounds and the child's best interest by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence "establishes that that truth of the facts asserted is highly probable . . . and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from evidence[, ]" and "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004).

         In termination cases, appellate courts review a trial court's factual findings de novo and accord these findings a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H, 483 S.W at 523-24 (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H, 215 S.W.3d 793, 809 (Tenn. 2007)). Our supreme court further explains:

The trial court's ruling that the evidence sufficiently supports termination of parental rights is a conclusion of law, which appellate courts review de novo with no presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions of law in parental termination appeals, as in other appeals, are reviewed de novo with no presumption of correctness. In re Angela E., 303 S.W.3d at 246.

In re Carrington H., 483 S.W at 524.

         Lastly, in the event that the "resolution of an issue in a case depends upon the truthfulness of witnesses, the trial judge, who has had the opportunity to observe the witnesses and their manner and demeanor while testifying, is in a far better position than this Court to decide those issues." In re Navada N., 498 S.W.3d 579, 591 (Tenn. Ct. App. 2016) (citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997)). This Court therefore "gives great weight to the credibility accorded to a particular witness by the trial court." In re Christopher J., No. W2016-02149-COA-R3-PT, 2017 WL 5992359, at *3 (Tenn. Ct. App. Dec. 4, 2017) (citing Whitaker, 957 S.W.2d at 837).


         Grounds for Termination

         Abandonment Generally

         Abandonment is a statutory ground for termination of parental rights. Tenn. Code Ann. § 36-1-113(g)(1). Tennessee Code Annotated section 36-1-102 defines "abandonment, " in relevant part, as

(1)(A) For purposes of terminating the parental or guardian rights of a parent or parents or a guardian or guardians of a child to that child in order to make that child available for adoption, "abandonment" means that:
(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent or parents or a guardian or guardians of the child who is the subject of the petition for termination of parental rights or adoption, that the parent or parents or a guardian or guardians either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child;
*** (iv) A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's or guardian's incarceration, or the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child[.]

         Tenn. Code Ann. §36-1-102(1)(A)(i)-(iv). A central inquiry a court must make when determining whether a parent abandoned his or her child pursuant to section 36-1-102(1)(A) is whether the abandonment was willful. See Tenn. Code Ann. § 36-1-102(1)(A)(i) & (iv). This Court has explained the concept of willfulness in parental termination cases:

The concept of "willfulness" is at the core of the statutory definition of abandonment. A parent cannot be found to have abandoned a child under Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either "willfully" failed to visit or "willfully" failed to support the child for a period of four consecutive months.
In the statutes governing the termination of parental rights, "willfulness" does not require the same standard of culpability as is required by the penal code. Nor does it require malevolence or ill will. Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. Conduct is "willful" if it is the product of free will rather than coercion. Thus, a person acts "willfully" if he or she is a free agent, knows what he or she is doing, and intends to do what he or she is doing.
Failure to visit or support a child is "willful" when a person is aware of his or her duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not doing so. Failure to visit or to support is not excused by another person's conduct unless the conduct actually prevents the person with the obligation from performing his or her duty[] or amounts to a significant restraint of or interference with the parent's efforts to support or develop a relationship with the child[.] The parental duty of visitation is separate and distinct from the parental duty of support. Thus, attempts by others to frustrate or impede a parent's visitation do not provide justification for the parent's failure to support the child financially.
The willfulness of particular conduct depends upon the actor's intent. Intent is seldom capable of direct proof, and triers-of-fact lack the ability to peer into a person's mind to assess intentions or motivations. Accordingly, triers-of-fact must infer intent from the ...

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